tv Key Capitol Hill Hearings CSPAN February 26, 2016 2:00am-4:01am EST
number of negative votes in the senate. again, the same is true today. president obama's appointments of sonia sotomayor and elena kagan, for example, are both among the top five most-opposed supreme court nominees in history -- or should i say appointees in history. third, then-chairman biden noted that the presidential election process had already begun. once again, that is the case stayed. in fact, we've had a lot of votes. that's the case today with voters in numerous states having already cast ballots.
and other states going to cast ballots probably before the nomination occurs. fourth, chairman biden said that the confirmation process itself had become increasingly divisive. this criterion strikes me as ironic given its source. after all, senate democrats are responsible for provoking the so-called confirmation wars with the political and ideological inquisition used to defeat the supreme court nomination of robert bork and the despicable smear tactics used against the nomination of clarence thomas. by the way, i remember when miguel estrada was nominated by a republican president, and they did everything in their power to stop him from even being on the district of columbia circuit court of appeals, or circuit court of appeals for the district of columbia. there was one reason they did that, because he would have beee
circuit court of appeals for the district of columbia is a steppingstone and has been a steppingstone to the supreme court. they didn't want the first hispanic in the history of this country to be on the court nominated by republicans. miguel is one of the greatest attorneys in this country, and yet that's what happened. it's hard to believe with the crying and moaning and groaning i'm getting from the other side when you look at some of these facts. let's go all the way back to roosevelt. roosevelt tried to pack the court. he was a democrat. in these instances i'm showing here, they're all part of being democrats. senate democrats have also been responsible for every major escalation in judicial confirmation since 1992. within two weeks of president
george w. bush's nawx, the senate democratic leader vowed to use -- quote -- "whatever means necessary -- unquote -- to defeat undesirable judicial nominees. a few months later, senate democrats organized a retreat with the goal, as "the new york times" described it, of changing the ground rules for the confirmation process. in january, 2002, former democratic congressman, appeals court judge and white house counsel abner mikfa urged senate democrats not to consider any supreme court nominees during president bush's first term. he went on to be on the circuit court of appeals. in 2003, democrats began for the first time to use the filibuster to defeat judicial nominees who otherwise would have been confirmed, and in july, 2007, senator charlie schumer, a
friend of mine, said in a speech to the american constitution society that the senate should not confirm a supreme court nominee during president bush's final 18 months in office, except in what he called extraordinary circumstances. when chairman biden said in 1992 that the state of the confirmation process should defer consideration of any supreme court nominee, no judicial nominee had been defeated by a filibuster in nearly 25 years. during president george w. bush's tenure alone, democrats led 20 filibusters that ultimately defeated five appeals court nominees. think about that. and more to the point, in 2006, senators biden, clinton, reed, leahy, sherman and obama voted to filibuster the supreme court nomination of samuel alito who
was sitting on the third circuit court of appeals at the time. president obama did say last week that he now regrets voting to filibuster the alito nomination, although it is unclear why it took him 3,670 days to reach that conclusion. now, he told me that last night in the white house in a private conversation we had, and i accept his statement. i like the president personally. the reason i'm bringing this up is there is no -- there is no reason for the other side's screaming and shouting on this. and finally, after the d.c. circuit court of appeals, a court that many of us considered nearly as important as the supreme court, rightfully invalidated several key actions of the obama administration, democrats openly sought to fill that court with compliant judges in order to obtain more favorable decisions. the president's allies in this
body in their own words -- quote -- focus very intently on the d.c. circuit -- unquote -- to -- quote -- switch the majority -- unquote -- who are willing to -- quote -- fill up the d.c. circuit one way or another, unquote. they broke the rules to change the rules so they can pack this very important court where most of the regulatory matters are decided. most of the administrative law matters are decided. like i say, one of the most important courts in the country. in the rush to eliminate any possible judicial obstacle to the administration's overreaching agenda, senate democrats in 2013 used a parliament maneuver. the so-called nuclear option to abolish the very nomination filibusters that they had used so aggressively but with one telling exception -- they left alone the possibility of filibustering a supreme court nomination. having done so, they must continue to believe that the senate's advice and consent rule allows denying any confirmation
vote to a supreme court nominee. i'm disappointed and frankly a little baf ld at the response so far of my democratic colleagues. now vice president biden and president obama himself are both sad that he was speaking in 1992 about a -- quote -- hypothetical vacancy, unquote. of course he was. and his purpose in doing so is to out line what the president and senate should do if that hypothetical vacancy materialized. well, that vacancy is no longer hypothetical. it is very real. yet the vice president now says that the senate should not take his advice after all. vice president biden has also said that his words from 1992 are being taken out of context. we have all faced the inconvenient truth of our past words, and especially in these areas, and then -- and the go-to objection is often about context. i have two suggestions. first, my colleagues should read chairman biden's speech for
themselves. it takes up ten full pages in the "congressional record," so there is as much context as anyone could possibly want to consider. a second option is to consider how the media have described that speech. one cbs news story, for example, has the headline "joe biden once took g.o.p.'s position on supreme court vacancy." perhaps they, too, are contextually challenged. here is what "the washington post" said about the speech. let me refer to the chart here. "biden's remarks were especially pointed, voluminous and relevant to the current situation. embedded in the roughly 20,000 words he delivered on the senate floor were rebuttals to virtually every point democrats have brought forth in the past week to argue for the consideration of obama's
nominee." well, the constant refrain of senate democrats and their media allies over the past few days is that the senate should just -- quote -- do its job, unquote. of course what they really mean is that the senate should do what they want the senate to do. then-chairman biden believed in 1992 that the senate would be doing its job by deferring the confirmation process for a supreme court nominee. senate democrats presumably believe that the senate was doing its job by denying confirmation votes to judicial nominees under president george w. bush. the minority leader presumably believes that the senate would be doing its job by not voting on nominations since, as he said in 2005, the constitution is not required to do so.
i can only assume that the senior senator from new york believes that the senate would be doing its job if it followed his 2007 recommendation and refused to consider supreme court nominees in a president's final 18 months. perhaps the most audacious claim trafficked by the other side of the aisle over the past few days is, as the senior senator from new york has said -- quote -- "it doesn't matter what anybody said in the past." unquote. or as president obama put it, quote, senators say stuff all the time, unquote. i agree with both of those statements. in response, consider this point. benjamin franklin wrote in 1789 that -- quote -- in this world, nothing can be said to be certain except death and taxes, unquote. i'd like to add one more thing to that list. it is equally certain that if a supreme court justice beloved by the left passed away in the final year of president -- of a republican president's tenure, a
democratic-controlled senate would not only refuse to consider any nominee of the lame-duck president but would extensively cite chairman biden's 1992 speech and other such clear statements for support. yeah, if this was reversed, you can imagine what the other side would be saying. my personal approach is i think we ought to get out of this terrible atmosphere and get out of it next year and whoever is president has that obligation to nominate. indeed, my friends on the other side seem to have fallen into a trap identified by justice scalia and his opinion in the noel canning case in which he warned that -- quote -- individual senators may have little interest in opposing presidential encroachment on legislative prerogatives, especially when the encroacher is the president who is the leader of his own party, unquote. now, before i conclude, i cannot let pass the disturbing comments yesterday by our minority
leader, a friend of mine, i care for him a great deal, about judiciary chairman chuck grassley. i have served with senator grassley for nearly 25 years on the finance committee, and for 35 years on the judiciary committee. if there is anybody in this body who knows his own mind and makes his own decisions, it is chuck grassley. i was flabbergasted by the minority leader's statement that chairman grassley has allowed the majority leader to -- quote -- run roughshod -- unquote -- over him. if the minority leader's case for committee action depends on grasping at such unwarranted and unjustified personal attacks, then the minority leader exposes the weakness of his own position. under chairman grassley's leadership, the judiciary committee has reported 21 bipartisan bills, five of them have become law, the same number as during the entire 113th
congress under democratic leadership. this record contrasts quite favorably to the senior senator from nevada's abysmal record in the last congress as majority leader in which the senate set a record for bills that bypass the committee consideration and voted on only 15 amendments in all of 2014. i know that there are different opinions about whether or not -- about whether or how to address filling a vacancy left by justice scalia's death, and i appreciate that. and i appreciate that senators and others feel strongly about these issues. nevertheless, it is absolutely disingenuous for the minority leader, who today demands the same up-or-down vote that he has 25 times tried to prevent for republican nominees, to suggest that chairman grassley is doing anything other than what he believes is right. grassley is one of the great senators here. he's totally honest. we all know it. and he speaks his mind. and we all know that, too.
madam president, i've served longer on the judiciary committee than any other current member of this body. except for senator leahy. during these past four decades, including during my more than eight years as chairman of the committee, i have strived to develop a record of true fairness toward the nominations made by presidents of each party. i have absolutely no doubt that the treatment of this vacancy fits squarely within this record of fairness. the bottom line here is simple -- the constitution obliges the senate to take its role seriously as a check on the president in the consideration of lifetime appointments to the federal courts, especially the supreme court. with voting already under way to replace our lame-duck president, delaying consideration of a nomination until after the election comports not only with historical practice but also the prescription of key democrats in the senate on the white house
over many years. by protecting the integrity of the supreme court in this environment, senate republicans are unquestionably doing the job the constitution charges us to do. we can have differences, no question about it, but the senate republicans are acting responsibly. mr. brown: madam president? the presiding officer: the senator from ohio. mr. brown: i ask unanimous consent to dispense with the quorum call. the presiding officer: without objection. mr. brown: and i ask unanimous consent to speak as if in morning business for up to ten minutes. the presiding officer: without objection. mr. brown: thank you, madam president. the sudden passing and tragic passing of supreme court justice scalia leaves us with a vacancy to fill in our country's highest court. but it shouldn't lead us to a year-long political standoff. article 2, section 2, of the constitution is clear. the president shall nominate supreme court justice with the advice and consent of the senate. it doesn't say may. it doesn't say maybe. it doesn't follow by a clause
that says senators don't have to do their jobs in an election year. it doesn't say anything about that. and that's the tradition of our country, that senators, we run for office willingly, enthusiastically, work hard to get here. we take an oath of office. we get paid every week -- every couple of weeks we get a paycheck. yet some are saying we simply shouldn't do our job and move forward on this nomination. complete refusal to consider any nominee from this president is outrageous. it's indefensible, and it is unprecedented in spite what some of my colleagues would like to say. don't take my word for it. senator grassley, the republican chairman of the judiciary committee, said as recently as 2008 that -- quote -- "the reality is that the senate has never stopped confirming judicial nominees during the last few months of a president's term." we didn't elect barack obama. the country didn't elect barack obama, whether you voted for him or against him.
the country didn't elect him for a three-year term or three-fifths of a term, the country elected him for a four-year term. since the civil war, no supreme court vacancy has been left open for a year. and for the past century the senate's taken action on every single pending supreme court nominee. so, if republicans get their wao people in ohio all the time, republicans and democrats alike. i talked to a republican today who supports senator rubio for president and probably votes for republicans for president every election. he said i can't believe what mitch mcconnell did. i can't believe that my party, my, the people i vote for in senate races, in house races would possibly say we're not going to have a hearing on this nominee. we're not even going to meet with this nominee. i mean, a number of senate republicans have said we won't even shake hands. we aren't even willing to meet with the supreme court nominee that a president of the united
states under the constitution shall appoint, that the president of the united states submits to the united states senate. now, let's look at what's happened in the past. in 1988, president reagan's final year in office, a democratic majority unanimously confirmed justice anthony kennedy. 1988. again, president reagan submitted his name in a 1988, he was confirmed by a democratic senate. in fact, the senate's been confirming justices in presidential elections since our nation's founding. two of president washington's nominees were confirmed during his last years in office. since 1916, every pending supreme court nominee either received a hearing or been confirmed quickly before a hearing even took place. think about that, a pending supreme court nominee has never been denied a hearing in the history of the united states. the only exception is the nominees who were confirmed without a hearing. yet, within hours -- i think
actually, within less than an hour, i believe, of the announcement of justice scalia's passing, the republican leader in the senate pretty much said we're not going to do our jobs. we are not even going to have a hearing on whoever the president of the united states nominates, whoever it is. we're not only not going to have a hearing. he then said later, i'm not even going to meet with that person. imagine that. so that nomination, whoever president obama nominates, that vacancy will occur, will be more than a year for sure if the senate does nothing on its confirmation. again the last time there was a vacancy for as long as one year was during the civil war. it was 150 years ago. and that's because there was a civil war and the congress wasn't very functional in those days. members were leaving the court, leaving the senate and house after secession in 1861 and all the other things that happened. we have nearly, we have nearly a year left in president obama's term, about a quarter of the
term the american people elected him to serve. that's plenty of time for the senate to carefully consider and review a nominee. president obama, just to make clear that he was not just elected, he was elected decisively. he's only the second democrat, i believe, in american history, certainly the second democrat since the civil war. he's only the second democrat since the civil war to at least twice win a majority of the popular vote. only president obama, who got more than 50% of the vote twice, and president roosevelt who got more than 50% of the vote, i believe, four times, are the only democrats in 150 years that have gotten a majority of the vote twice. president clinton was elected twice with a plurality. president wilson was elected twice with a plurality. president obama, president roosevelt. these were decisive wins. this wasn't an accidental win. this wasn't a candidate put into office by a decision of the u.s. supreme court. this was a legitimate election
in a decisive win. let's look at some of those nominees. the longest nomination on record was justice brandeis whom i believe was the first jewish american to be appointed to the supreme court. his took 125 days. president obama has more than 300 days left in his term. if we fail to confirm a nominee, if senate republicans fail to do their job they were elected, they were sworn in, they get paid, all of us do, we're just asking them to do their job. but if senate republicans don't do their jobs, two supreme court terms will pass before a new justice is appointed. yesterday i spoke with professor peter shane, a law professor, law professor at o.s.u., ohio state's moritz college of law in columbus. professor shane said a vacancy of this unprecedented length on the supreme court -- quote -- "will compromise its ability to perform its proper constitutional function and it will create prolonged uncertainty." i have heard so many republicans
in the senate say we do all these things and create uncertainty, uncertainty in the economy, uncertainty in regulation, uncertainty in the consumer bureau, warfare. this is the worst kind of uncertainty, self-inflicted and affects one-third of the government, one of the three branches of government. without full bench, justice could be further delayed for americans who have fought for years to have their decisions heard. split decisions, 4-4, would leave americans in different parts of the country subject to different laws. how to prevent that? do your job. thousand prevent that? do your job, to my colleagues in the senate. in the past, senator mcconnell himself has agreed with a normal, deliberative approach for supreme court nominees. he said in 2005, "our job to react to the nomination in a respectful way. to give that person an up-or-down vote as all nominees have gotten through the history of the country." that's what senator mcconnell
said a decade ago. now he is saying the senate won't even do our jobs. again, we run for these offices. we get sworn in these offices. we get paid every two weeks. we should be doing our job. i am not saying every republican has to vote for the president's nomg. what we're saying is meet with them, the president will do the nomination, we should begin hearings, meet with these nominees individually. every supreme court nomination, since i have been in the senate -- i have had an hour-long meeting with each nominee -- we then make our decisions based on that. not say we're not going to work, we're not going to do our jobs. what, what, what, how would that make sense? the only difference now is we have a different president. time and time again democrats in the senate have given republicans supreme court nominees a fair hearing and the up-or-down vote they deserve. during the seven years the vice president has chaired the judiciary committee, when he was a senator here, he did his job. he oversaw the confirmation of
three justices who are nominated by a republican president. in the case of clarence thomas, he even allowed justice thomas to have an up-or-down vote on the senate floor, evening though the committee failed to report his nomination with a favorable recommendation. so what does that mean? that means when clarence thomas was in front of the senate judiciary committee, a majority of members said "no." they didn't want to confirm him. yet they still moved his nomination to the floor. he didn't filibuster. they didn't require 60 votes they just said a majority vote wins. thomas won 52-48. nobody blocked him, which they could have easily done. and the senate did its job. the same thing we're asking the senate to do today. both justice thomas and justice alito were confirmed by the senate with neurothan 60 vote -- fewer than 60 votes. they could have blocked him with a filibuster. they didn't. they allowed both of them to come forward, even though lots of opposition, they still allowed hem for an up-or-down
voavment yet this time senate republicans are refusing to hold hearings and are in many cases rycasesrefusing to even meet wie nominee. we're just saying, do your job. you were sworn n you ran for these offices. you were sworn in. do your jobs. you get paid to do these jobs. show up for work and do your job. can you imagine how republicans would have reacted with justice nomination? the consistent attempt to delegitimize our democratly elected president is politics at its worst. 2013, republicans didn't like the results of the 2012 election, so they shot down the -- shut down the government. three years later they still didn't like the results of the 2012 election. so they are saying, forget the 2012 election. this is all about the 2016 election. no, it is really about the president of the united states elected in 2012, with a majority of votes in an electoral college
landslide, elected for a four-year term. not a three years and one month term, a four-year term and american history in spite of what my colleagues like to say with their revisionist history, in spite of what they like to say about revisionist history, the fact is we have done this in the fourth year or the eighth year of many presidents. now they're trai they are tryins they shut down the government in response to the 2012 election -- which they didn't like, about which they didn't like the outcome -- now they're trying to shut down the supreme court process with a year left in this president's term. you don't shut whole system down when you don't get your way. it is a dangerous precedent that undermines our democracy. our friends on the other side of the aisle justify this saying we need to let the people make their choice. they d they made their choice in 2012 of selecting a president for a four-year term. this is the fourth year of his term. there is no reason this
president shouldn't have the ocialtion right to nominee, to send a name up here. ness no reason that senators shouldn't do our jobs. have hearings, meet with the nominee, bring them to the floor for a vote with a 50-vote threshold, a majority vote, and see what happens. they may vote "no." if so, that's a legitimate exercise. if they're not even willing to go through the process and see what might happen and see what the public judges as the right decision and whether to confirm or not, they're not doing their jobs. i expect this senate -- i expect this senate maybe asking too much when i've seen the partisanship and the head-in head-in-the-sand attitude and the fight this president at all cost views of so many on the other sievmentd but i expect this body to put politics aside. give a fair vote to any qualified nominee. that's our job. simply put, we need to do our job. madam president, thank you. i yield the floor. the supreme court vacancy.
mr. president, i rise today to express my very deep, deep disappointment in my republican colleagues for vowing to block president obama's nomination, vowing to block president obama's nominee for filling the vacancy on the supreme court. each and every senator serving in this chamber was elected by the american people, and we took an oath to uphold the constitution. in this matter, the constitution is very clear. article 2, section 2 says the president shall nominate and by and with the advice and consent of the senate shall appoint judges of the supreme court. mr. president, it doesn't say the president, oh, he has an
hour and a half left, it doesn't say give a time limit on the president. if you're president and you have a four-year term, you have the authority and duty to exercise your obligations under the constitution for a full four years. and the senate has a duty to provide advice and consent. there are no waivers for election years. i urge my colleagues do your job, follow the constitution and live up to the constitution. the constitution doesn't say that in an election year, delay, delay, delay. the word delay doesn't even appear in the constitution, that in the hope that one day you'll get your way. republicans have said that the senate must wait until the people have spoken by electing a new president in november, but the american people have already spoken.
they elected president obama in 2008, and they re-elected him in 2012. barack obama is our president now until noon, january 20, 2017 if the founders wanted a three-year term, they would have written that in the constitution, but they mandated a full, complete -- four complete years. now the other party wants to deny the president the legitimacy and the authority of his office. even george washington had his nominee considered during a presidential year with three of his candidates confirmed. what was good enough for the first congress under george washington should be good enough for this congress now under president obama. president obama and i will both be closing our offices in january of 2017, but that
doesn't mean we're done working for the american people today. there's a lot of work to be done. president obama has the constitutional duty to submit a nomination, to fill a vacancy left with justice scalia's passing. this duty is not suspended in an election year. the constitution is clear about the president's authority. the president must mull fill his -- must fulfill his duty and we must do our job. the issue is not about executive orders or checking executive powers or interpreting law books. it is about following the constitution. so i say to the republicans on this side of the aisle, please do your job. your constituents elected you to this position to again follow the constitution. now, if you don't like the nominee that the president has,
vote no but follow the process. the president will nominate. we go through a courtesy process where the nominee calls upon each senator and then there are hearings. there's a hearing and maybe there's several days of hearings and then there is a vote. i am calling for following the process mandated by the constitution and mandated by our traditions. the president nominates. let's meet with the nominee. let's hold the hearings, follow the process, and let's bring it to a vote. over the last 40 years, the average time it's taken for the senate to act is only 67 days from nomination to confirmation. so to say that we don't have enough time just doesn't work. we have ten months, 330 days left in this president's administration to do this job.
now, some of my colleagues say there's precedence for this obstructionism. chairman grassley, the chair of the judiciary committee, cited four times in our history where a president did not nominate someone to fill a vacancy during an election year. well, those numbers are right, but guess what? the vacancy occurred after the senate had adjourned for the year. none of those presidents could have nominated a candidate because the senate wasn't in session. for the past 100 years, every supreme court nominee has been acted upon. even if they get a disapproval vote in the committee, they still got a vote in the senate. robert bourque in 1987 was voted down in the committee. he still got a vote on the floor where he was voted down. clarence thomas in 1991, one of the most contentious and
controversial supreme court nominations that i had -- could participate in was voted by the committee without recommendation. he got a vote on the floor where he was approved 52-48. these candidates each had their day to be evaluated. each senator had the ability to provide their advice and consent or in some cases not consent. i didn't always vote yes on the nominee, but i certainly supported the processes that we have here. we never denied a sitting president his duty to provide a nominee. this is of utmost importance to our nation. it really is. the supreme court is unique. it is the highest court of the land with real and lasting impact on american lives. to obstruct a supreme court
nominee for political reasons would be absolutely unprecedented. until this vacancy's filled, the supreme court is left with eight members with the potential for tie votes. if there's a tie vote in a decision, the ruling of the lower court remains as if the supreme court never heard the case. and in some cases that leaves disagreement among courts leaving our laws at odds with each other. if this vacancy lasts until the next president, the supreme court could be left without members for two terms of the court. some of the cases with the most impact on our history have been decided in 5-4 votes. that takes me to some cases particularly of concern to me. what if we have a tie decision? we would still be stuck in
gridlock. the senate knows that i've been very involved in equal pay for equal work. will is the famous ledbetter case versus the goodyear tire company. it was decided 5-4. she faced injustice not only at her job but in the courts. at the urging of justice ginsburg, the senate provided a legislative remedy to correct that injustice. if we had a tie, we might not have ever been able to resolve this issue both through the court and through the senate. this is what democracy is supposed to be. but then we get to another case that was just amazing. that's bush versus gore. do we all remember florida in the 2000 election? do we all remember the hanging chads? do we all remember days when we weren't really sure who had won the election? al gore or george bush?
but, you know, it was america. there were no tanks in the streets. schoolchildren were able to go about learning what america is all about and get ready for the new century. we were moving ahead because the process moved through the courts. when it came to a decision, bush versus gore was decided 5-4. can you imagine now if we had a tied court? we would have a constitutional crisis and we would have the crisis over who was the legitimate president of the united states. we can't have this again. i hope that when the voters make their decisions in november on who they want to be the next president, that it is clear and decisive and we don't end up before the supreme court. but should we, we need to have a
court that is not going to end in a tie. and we have done our job to make sure that there are nine, n-i-n-e, on the supreme court. i really in the interest of our country, first of all, follow the constitution. do your job and also to say to the world we are a nation of law. we encourage people all over the world that are emerging from often authoritarian a screams -- regimes or chaotic situations, write a constitution and live by it. we wrote a constitution. let's live by it. and i would say that we need to follow what we say we were elected to do, that we swore an oath to do. president obama must do his job.
i urge the republicans to do your job. let's follow the constitution, live up to the constitution. when the president makes his nomination, let's open our doors so we can meet with that nominee. let's hold a hearing or multiple hearings if necessary and then let's hold a vote on the senate floor. let's be accountable by deeds of our votes, not just simply by avoiding our responsibility. mr. president, less. the presiding officer: without objection. mrs. feinstein: thank you very much. mr. president, at noon today a group of us on this side of the aisle went to the supreme court, stood in front of it, and spoke about what was happening with the republican decision not to proceed with the advice and consent provisions of the united states constitution.
and i've been a member of the judiciary committee, mr. president, for 23 years. i have sat on six supreme court cases. and in those 23 years as a nonlawyer, i really became infused with great respect for the american system of justice, for the trial courts, for the appeal courts, and for the supreme courts. on the state level as well as on the national level. and i don't think there is any system of justice that affords an individual, a company, an organization a fairer way to proceed to litigate a case than the american justice system. so, as i stood there and heard some of my colleagues speaking, i began to think of the enormity of what is happening. we all know that the
constitution is clear, that the president's role is to nominate and the senate's role is to advise and consent on the nominee -- nothing less, nothing more. so i strongly believe that we should proceed to render a president's nominee to the highest court of the land and proceed to consider that advice and consent with a hearing in the judiciary committee. to do anything less, in my view, is to default on our responsibility as a united states senator. there has been this process, no matter how controversial a nomination. that's been the process even when the president and the senate are of different parties. and, yes, that's been the process during presidential election years. that's what happened when anthony kennedy was confirmed in
the last year of president reagan's term, when democrats actually held the senate majority. in fact, a total of 14 justices have been confirmed in the final year of a president's term. now, why is this important? the supreme court is a coequal branch of our federal government. it is a vital part of the separation of powers. it's the final arbiter of the law of the land, and one of our important jobs as senators is to ensure the court has the justices it needs to decide cases. it's impossible to overstate the importance of a functioning supreme court. brown v. board of education desegregated our schools. loving v. virginia struck down laws ha that made interracial marriage illegal. roe v. wade ruled on the
constitutionality of state limits on women's access to reproductive health care. -- which has been upheld as precedent for over 40 years. bush v. gore even decided who would move into the white house as president of the united states. more recently, the supreme court struck down limits on campaign money, nullified a key part of the voting rights act of 1965, upheld obamacare, and legalized same-sex marriage. now what does a 4-4 court mean? the prospect of having more than a year -- as a matter of fact, some are saying it's up to two years -- of tie votes on the court in major controversial issues would be terrible for our system of justice. justice scalia wrote about the prospect of a split court in
2004. in responding to a request to recuse himself, he declined. he said, if he were to recuse himself -- quote -- "the court proceeds with eight justices, raising the possibility that by reason of a tie vote it will find itself unable to resolve the significant legal issue presented by the case" -- end quote. that's justice scalia. he continued, quoting the court's own recusal policy. quote -- "even one unnecessary recusal impairs the functioning of the court" -- end quote. so that's what we are doing. we are impairing the functioning of the supreme court of the united states. what the republicans are doing will affect cases for, we think, at least two years, cases left
from this year and those to be heard next year. if republicans are successful in blocking a hearing and a vote on the president's nominee, the court will find itself unable to resolve important legal questions for a lengthy period of time. imagine, mr. president, that you are a plaintiff, someone who has been wrongly terminated from a business or a business in a legal dispute, or imagine you are a person or a business held liable as a defendant for millions of dollars in a civil case, or someone who has been charged with or request unanimous consented of a crime -- or convicted of a crime. you might spend years of your life in prison or even be subjected to the death penalty, even though there may be a legal problem with your conviction or sentence. in all of these instances, as justice scalia pointed out, the
court -- quote -- "will find itself unable to resolve the significant legal issue presented by the case" -- end quote. and that will mean that individuals and businesses, as well as the american people itself, will be denied the full system of justice guaranteed by this constitution. our people should not stand for this. there are major issues pending before the supreme court. there are important measures to help stop climate change, immigration issues, race in college admissions, the fundamental concept of one person, one vote; the ability of unions representing public employees to function. the point is this: important issues are before the court or will be, and there should be a full court to hear them.
there's absolutely no reason -- none -- that the senate should refuse to do its job and conduct full and fair hearings and hold a vote on the nominee. just a bit of history: the senate has not left a supreme court seat vacant for a year or longer since the middle of the civil war. that's fact. since the middle of the civil war. that would be about 1863. even as the nominations process has become more contentious, the senate has still considered supreme court nominees in a timely manner. this has happened regardless of who sat in the white house or which party controlled the congress. so here are a few historic facts to consider: since the judiciary committee began holding hearings in 1916
for supreme court nominees, a pending nominee to the supreme court vacancy has never been denied a timely hearing -- never denied a timely hearing, even in the final year of a president's term. since 1975, the average time between a supreme court nomination and a vote by the full senate has been 67 days only, about two months. and i would remind my clean colleagues -- remind my republican colleagues that this includes justice anthony kennedy's confirmation, which took place in february of 1988, a california judge in the final year of president reagan's presidency and before a democratic senate. so a democratic senate took a
republican president's nominee in the final year, who was a republican, and made him a justice of the united states supreme court. this has held true even for controversial nominees. robert bork and clarence thomas both failed to win a majority vote by the judiciary committee, but their nominations still advanced to a full senate vote. that was even the case for justice thomas, a very conservative jurist, who replaced justice thurgood marshall, a very liberal jurist. and, again, this took place in a democratic-controlled senate. many of my republican colleagues have voiced their own support for a president's right to have his nominee considered. someone i consider a friend who
is chairman of the judiciary committee -- who was chairman of the judiciary committee during periods of my tenure, senator orrin hatch, who voted in favor of justice ginsburg, said at the time -- and i know i noted it, because i was sitting right there and heard it -- said that he believed a president deserves some deference on supreme court appointments. he said he would not vote against a nominee simply because he would have chosen someone else. senator grassley, now chairman of the judiciary committee, made similar comments, saying congress must not forget its advice and consent responsibilities. well, those responsibilities don't cease with the death of a jurist. as a matter of fact, that's the clear intent of the constitution, that the advice and consent responsibility is
mandated, no matter what. so to refuse to hold hearings before a nominee is even announced, to me, is shocking, and it makes me think, you know, to what extent is the partisanship inherent in this body going, when it's willing to deny the supreme court a vital member? it would be like denying a baseball team a pitcher. they couldn't conduct a game without a pitcher. and a case that has any controversy cannot be fairly held without nine justices. so that's not what we were sent to washington for. it's not how to do the people's business. to deny the american people full and fair senate consideration
for a supreme court nominee would be unprecedented in our history and further undermine faith in the senate as an institution. i really deeply believe this, and i don't know why we would let this happen. if republicans follow through on this threat, the fairness of the process for the supreme court will forever be tarnished. the consequences could reverberate for generations, and it will be a serious gesture against the functioning of this great democracy. so all we ask, mr. president, is do your job. it's why we were sent here, after all. thank you very much. mr. president, i yield the floor. i note the absence -- i do not
note the absence of a quorum. thank you. mr. udall: mr. president? the presiding officer: the senator from new mexico. mr. udall: thank you, mr. president, for the recognition. i just want to say to senator feinstein, i listened to much of her remarks and very much agree with what she said in terms of we should be doing our job in terms of this supreme court nominee. i mean this really is our job, advice and consent. the constitution talks about how we shall advice and consent when
we get nominations. you know, ten years ago the senate faced a critical task to consider the nomination by president bush of samuel alito to the supreme court. it was a fierce debate. many opposed him. some passionately so. i won't argue that it was an easy road, but it was a road that was traveled because that is our job and because that is one of our most important duties. at the time the current majority leader was very clear on that duty that the senate has, and he said "we stand today on the brink of a new and reckless effort by a few to deny the rights of many to exercise our constitutional duty to advice and consent, to give this man the simple up-or-down vote he deserves.
the senate should repudiate this tactic." and that's a direct quote from the majority leader. justice alito did get an up-or-down vote and was confirmed 58-42, including four democrats who voted in favor. mr. president, the majority leader was right. we do have a duty to advice and consent, and the constitution uses the word "shall." shall advice and consent. a president's nominee does deserve an up-or-down vote. that's true then and it's true now. i do not agree with many of justice alito's views, but i do believe that it was critical for the senate to do its job. now here we are, a new nomination to the supreme court by a different president, but the majority leader seems to have changed his mind.
we're told that no nomination of anyone by this president will be considered. the current senate majority is refusing its constitutional mandate that it shall advice and consent, refusing to do its job for blatantly partisan and political purposes. this is misguided and it's without precedent. the full senate has always voted to fill a vacancy on every pending supreme court nominee. in election years and nonelection years, every single one for the last 100 years. but we cannot go back -- but we can go back even further than that, further back than 100 years. the senate judiciary committee was created 200 years ago. according to the congressional research service, the committee's usual practice has been to report every nominee to the full senate, even those
nominees opposed by a majority of the committee. this is a bipartisan tradition, one that makes sense, one that we should follow. when senator leahy was judiciary chairman, he and ranking member hatch did just that. nominations, even those opposed by a majority of the committee, went to the full senate. in 2001, the republican leader, senator lott, said -- and i quote here -- "no matter what the vote in committee on a supreme court nominee, it is precedent of the senate that the individual nominated is given a vote by the whole senate. were those senators any less principled? i don't think so. were those senators any less passionate in their views? no. but they did their job. they knew how important this was to the country. they honored the senate tradition and they made sure that the highest court in the
land was not running on empty. how did we get from there to here? if the majority leader has his way, there will be no hearing, no debate and there will be no vote. the confirmation of a supreme court justice is critical to a functioning democracy and it has become contentious only in recent years. it wasn't always so polarizing. take, for example, justice scalia who we just lost. justice scalia was confirmed 98-0. i'm not arguing that either side is 100% pure, but we know one thing. a fully functioning supreme court is vital to ensure justice in our system of government. and it depends on a fully functioning senate. mr. president, this obstruction is part of a bigger problem.
we have seen before and we're seeing now that the senate is broken. the american people are frustrated, fed up with political games, obstruction in the senate, special deals for insiders, campaigns that are being sold to the highest bidder. they see this obstruction as just another example of how our democracy is being taken away. in this case, the hammer doing the damage is the filibuster. instead of debate, we have gridlock. instead of working together, we have obstruction. that's why i pushed for rules reform in the 112th congress, in the 113th congress. that is why i continue to push no matter which party is in the majority. we change the senate rules to allow majority votes for executive and judicial nominees to lower courts, but that does no good if they remain blocked. and that is what is happening in
this congress. the line gets longer and longer of perfectly qualified nominees denied a vote, denied even to be heard. meanwhile, the backlog grows. 17 judges, three ambassadors, even the top official at the treasury department whose job is to go after the finances of terrorists. we are on track for the lowest number of confirmations in three decades. we now have 31 judicial districts with emergency levels of backlogs. a year ago we had 12. thousands of people wait for their day in court because there is no judge to hear the case. that is justice delayed and justice denied. just when you think things can't get any worse, they do. a seat on the supreme court is empty and the majority leader is actually arguing that it should
stay empty for over a year. mr. president, i do not believe that the constitution gives me the right to block a qualified nominee, no matter who is in the white house. i say that today and i've said it many times before. now amazingly that obstruction may reach all the way to the supreme court and not just for a specific nominee, but for any nominee. mr. president, what we are seeing is bad going to worse. and what we are seeing is election year politics. the majority leader said that the voters should have a say in who the next supreme court justice is. they have their say. they overwhelmingly reelected president obama to a four-year term. not a three-year term. there's no logical end point to the majority majority's new pos.
they say no president supreme court nominee should be considered in his last year. what if this were two months ago? what would their views be if it was december 2015? october? and i might add presidents aren't the only ones with limited terms in office. a number of sitting senators are retiring. do their constitutional duties and rights as senators expire now as well? of course not. and neither should a president's. nominees should be judged on their merits. they are public servants in the executive branch, on our courts. they serve the people of this country. they should not be judged on your feelings about a president you may not like. that's not governing. it's a temper tantrum. and let's be very clear. a presidential election year is no excuse. for example, justice kennedy was confirmed unanimously in the
last year of president reagan's administration by a democratic-controlled senate. mr. president, our democracy works with three brarchtion of of -- three branches of got, not just two. this is without cause and it should be without support. the president will do his duty and will nominate a supreme court justice. any senator has the right to say no, but the american people have the right to hear why. i began my speech with comments by the majority leader, but this really isn't about what the majority leader said ten years ago or what other majority leaders have said and what both sides say back and forth. it's about what the american people are saying now and what the constitution has always said. do your job. uphold your oath. move our country forward. so i say to my colleagues, let's
>> watch tv all weekend every weekend on c-span2. book tv for serious readers. >> there is a house hearing on the pentagon's budget. they talked about the obama administration's request for a $582 $582 billion in defense spending. secretary carter talks about the need to counter threats posed by russia, china, north, north korea and iran. congressman chairs this two and a half hour hearing.
this is second appearance before the subcommittee. i'm convinced there's nothing they admire more than strengthen nothing they have less respect for me weakness, especially military weakness. they were referring to the postwar leadership in moscow but the same could be said today. i fear that as they examine this administration budget request, they have to be breathing if i have relief. one year year ago on the same room, we were told by the
gentlemen of the joint chiefs that our last year's budget request represents the lower ragged edge of resources they need to carry out the strategy. the budget request before us today is almost exactly the same amount as last year but they now claim to provide robust funding for this department. mr. secretary, lower lower edge or robust funding? they are justifying a shrinking army and marine corps, a smaller navy and older air force and we face more serious threats from more sources than any time since world war ii. russia occupies crimea. china is building islands in the south china sea. they are militarizing them and this administration suggests
cutting an already inadequate budget. many of our days in afghanistan have been reversed. the taliban and and isis await our departure. iraq is barely better. iran's global terrorist network just received a massive transfusion of money and begins to challenge us in iraq, yemen and across the middle east. syria is a living hell on earth and getting worse by the day. we have seem to be deconflicting with both nations, hardly our allies. isis has a major franchise in libya. hundred and 60 miles of mediterranean coastline. terrorism is like a cancer across the world and this budget does not do enough to halt its spread.
moreover, many of us are concerned that this budget mortgages future military capabilities to pay for today's urgent requirements. mr. secretary, our commander in chief claimed in the state of the union address that we spent more on our military than the next eight nations combined. if these dollars and sense are the only measurement that we measure our armed forces and the strength of our global leadership, our adversaries measure our strength based on our military capability and our national will. currently those adversaries question both. members of our subcommittee feared this repeatedly from foreign leaders and hear this as we travel aboard and meet them at home. they continually test us without consequence. mr. sec., i also want to bring to your attention, the concern that many share about the activities of the national
security council. it's come to my attention repeatedly that the rules of engagement for our special forces and rules of engagement for our conventional courses are being micro managed right out of the white house. i'm sure you would agree that the battlefield decision should be left to military professionals. in closing, i can assure you that the bipartisan majority stands ready to provide our commander in chief with the resources that are military needs to meet challenges from russia and china to defeat the islamic state, al qaeda and other lethal terrorist groups, with or without the strategy that the law requires. in fact, the 2016 required 16 required the administration to provide a strategy that counters violent extremists in syria by last week. we are still waiting. now, having said that, i'd like
to turn the microphone over. thank you. >> thank you mr. chairman. i appreciate you holding the hearing today. secretary carter for being here and welcome to the hearing. i think each of you, i think you for your commitment to service. chairman, i wish to express my continued concern created by the budget control act. admittedly i use much of my time in the 2016 hearing for a sane purpose. although much has changed in the past 12 month, including the enactment of the bipartisan budget act of 2015 that mitigated the cap for two years, it's hard to argue that the department of defense defense or any federal agency is now appreciably better position to
plan or budget for the future. it pains me to think about how much less efficient the department of defense has been over the last six fiscal years as it has been forced to carry out our national defense strategy in an increasingly unstable security environment that you have described. we are navigating the unpredictability of sequestration, government shutdown, budget caps and continuing resolutions. even the most clairvoyant among us camp perceive the problems looming in fiscal year 2018. the bca was sold as the deficit reduction reduction tool, yet the congressional budget office projected the cumulative deficit will be 5 trillion more than the office projected in august 2015.